STATE OF MISSOURI v. WILLIAM W. WELCH, JR. ( 2020 )

Missouri Court of Appeals
Southern District
Division Two
STATE OF MISSOURI, )
)
Respondent, )
)
vs. ) No. SD36144
)
WILLIAM W. WELCH, JR., ) FILED: July 22, 2020
)
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF SCOTT COUNTY
Honorable David A. Dolan, Judge
AFFIRMED
Following a jury trial, William W. Welch, Jr. (“Defendant”) was found guilty of
possession of a controlled substance, a class D felony, see section 579.015, and the unlawful
possession of drug paraphernalia, a class D misdemeanor, see section 579.074. 1 In two points on
appeal, Defendant argues that the jury could not reasonably infer, first, that he knew about the
controlled substance and, second, that he knew about the drug paraphernalia. Finding no merit in
Defendant’s points, we affirm.
Standard of Review
In reviewing a claim that there was not sufficient evidence to sustain a criminal
conviction, this Court does not weigh the evidence but, rather, accepts as true all
evidence tending to prove guilt together with all reasonable inferences that
support the verdict, and ignores all contrary evidence and inferences. This Court
1
All statutory references are to RSMo 2016.
1
asks only whether there was sufficient evidence from which the trier of fact
reasonably could have found the defendant guilty.
State v. Claycomb, 470 S.W.3d 358, 362 (Mo. banc 2015) (quotation marks, brackets, and
citations omitted).
Factual and Procedural Background
At 2:52 a.m. on September 4, 2017, Sikeston police officer Tyler Rowe (“Officer Rowe”)
received a report of a suspicious person at a construction site. After arriving at the construction
site to investigate, about two minutes after getting the report, Officer Rowe was alerted to a
portable bathroom located on the site when he observed that its outside indicator showed “red
occupied[.]”
Officer Rowe “jiggled” the portable bathroom’s door, heard someone moving inside, and,
after pulling the door open a crack, saw Defendant, who was fully clothed. When he was asked
to step outside, Defendant ultimately complied, although he did not do so immediately.
Defendant informed Officer Rowe that some individuals from his church were allowing him to
stay in their residence approximately fifty yards away, that he was out for a walk clearing his
head, and that he used to work in construction and was checking out the site when he decided to
use the portable bathroom. After determining that Defendant had no active warrants, Officer
Rowe allowed him to return to the indicated nearby residence.
Officer Rowe then resumed searching the construction site. In the portable bathroom,
Officer Rowe located a black velvet bag in the water “near the top of the toilet[.]” While the
outside of the bag was wet, inside the bag was a dry lightbulb with the filament removed that
contained a white crystalline powder. Based upon his training and experience, Officer Rowe
knew that a common method of smoking methamphetamine involved removing the filament
from a light bulb, inserting methamphetamine, heating the bulb, and then inhaling from where
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the filament used to be. Upon making this discovery, Officer Rowe immediately proceeded to
“recontact” Defendant.
After detaining and arresting the Defendant at the nearby residence with the help of
another officer, which took about two to three minutes, Officer Rowe returned to the portable
bathroom to continue his search for any more contraband. Floating in the toilet, Officer Rowe
additionally found the “bottom part of a cigarette pack cellophane” containing a white crystalline
substance that was not wet. Laboratory testing later revealed that the crystalline substance in the
cellophane was methamphetamine.
From the time of his initial arrival at the construction site until his final departure with
Defendant in his custody, Officer Rowe did not see anybody else at or near the construction site.
Defendant was charged with and found guilty of possession of a controlled substance and
possession of drug paraphernalia. The court sentenced him to seven years’ imprisonment in the
Department of Corrections for possession of a controlled substance and fined him $500 for
possession of drug paraphernalia. Defendant timely appeals.
Discussion
Both of Defendant’s points contend that the trial court erred in overruling Defendant’s
motion for judgment of acquittal. He argues, first, that “that the jury could not reasonably infer
that [Defendant] knew about the methamphetamine found in the portable bathroom on the
construction site” and, second, “that the jury could not reasonably infer that [Defendant] knew
about the black bag with the light bulb found in the portable bathroom on the construction
site[.]” Therefore, according to Defendant’s argument, “the jury could not find beyond a
reasonable doubt that he had either actual or constructive possession” of either item. Because of
their similarity and common surrounding facts and circumstances, we address both of
Defendant’s points together.
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Under section 579.015.1, “[a] person commits the offense of possession of a controlled
substance if he or she knowingly possesses a controlled substance[.]” Under section 579.074.1,
“[a] person commits the offense of unlawful possession of drug paraphernalia if he or she
knowingly uses, or possesses with intent to use, drug paraphernalia[.]” “Possessed” or
“possessing a controlled substance” is defined, in pertinent part, as:
[A] person, with the knowledge of the presence and nature of a substance, has
actual or constructive possession of the substance. A person has actual possession
if he has the substance on his or her person or within easy reach and convenient
control. A person who, although not in actual possession, has the power and the
intention at a given time to exercise dominion or control over the substance either
directly or through another person or persons is in constructive possession of it.
Section 195.010(34).
Thus, to prove the possession offenses charged against Defendant, the State was required
to show “‘(1) conscious and intentional possession of [the controlled substance and
paraphernalia], either actual or constructive, and (2) awareness of the presence and nature of the
controlled substance [and paraphernalia][.]’” State v. Phillips, 477 S.W.3d 176, 179 (Mo.App.
2015) (quoting State v. Power, 281 S.W.3d 843, 848 (Mo.App. 2009)) (some alterations in
original). “[B]oth possession and knowledge may be proved by circumstantial evidence.” State
v. Drabek, 551 S.W.3d 550, 556 (Mo.App. 2018). “We employ the same analysis when
reviewing the question of whether [Defendant] possessed drug paraphernalia as when
determining whether [Defendant] possessed a controlled substance.” Power, 281 S.W.3d at 849.
We begin and end our analysis with the evidence that supports findings of Defendant’s
actual possession of a controlled substance and drug paraphernalia. State v. McLane, 136
S.W.3d 170 (Mo.App. 2004), is instructive on the issue of actual possession when, like here, the
evidence is circumstantial. In that case, a law enforcement officer, after initiating a traffic stop,
discovered a change purse containing a controlled substance laying on the ground two feet away
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from the stopped vehicle. Id. at 172. The officer did not see the purse thrown from the vehicle.
Id. He did, however, observe the following: the passenger window, where the defendant was
sitting, was rolled down after the driver had exited the vehicle; the officer was momentarily
distracted by the vehicle’s driver and then he looked back at the window, which he observed
being rolled back up; the purse, which was warm to the touch, was discovered on top of fallen
snow next to the side of the vehicle where the defendant was seated; and the defendant, when
asked about the purse, stated “I guess it had to come out that window but it’s not mine.” Id.
Like the officer in McLane, Officer Rowe did not directly observe Defendant’s actual
possession of a controlled substance or paraphernalia. As with that case, however, such
possession could be reasonably inferred based upon the totality of the surrounding facts and
circumstances. Here, Defendant was discovered during the middle of the night fully clothed
while exclusively occupying a portable bathroom on a construction site with which he had no
known connection, with no one else around, and that was only fifty yards from the residence
where he was staying. The controlled substance and paraphernalia, both dry, were found in
containers, both wet on the outside, at the top of the water in the toilet, which could give rise to a
reasonable inference that they had recently been put in the toilet. Defendant did not immediately
exit the portable bathroom when asked to do so by Officer Rowe. The illicit materials were
discovered shortly after Defendant exited the portable bathroom. These facts and surrounding
circumstances could give rise to a reasonable inference that Defendant attempted to conceal or
dispose of the illicit materials in the toilet after his presence in the portable bathroom was
discovered by Officer Rowe, but before Defendant exited the bathroom.
In completing his attempted concealment or disposal of the illicit materials, Defendant
necessarily would have had those materials within his easy reach and convenient control, i.e., in
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his actual possession. See id. at 173 (“In order to have thrown the change purse from the pickup,
defendant would have had to handle it and maintain control over it.”). The attempted
concealment or disposal, following Officer Rowe’s knock at the door, was consistent with
Defendant having knowledge of the illicit nature of the material and his motivation to avoid
being caught with them on his person when he exited the bathroom. See id at 173–74 (citing
cases for the proposition that “the tossing of [a] backpack from [a] pickup after [a] patrol car
appeared was consistent with knowledge that possession of its contents violated the law”).
In addition, the jury was free to disbelieve the accuracy of Defendant’s explanation given
to Officer Rowe that he was out for a walk to clear his head and needed to use the portable
bathroom. State v. Jackson, 433 S.W.3d 390, 399 (Mo. banc 2014) (jury has right to disbelieve
all or any part of the evidence). Such disbelief, coupled with Defendant’s admission that the
residence where he was staying was a mere fifty yards away, could give rise to a reasonable
inference that Defendant made a false statement to Officer Rowe out of his desire to conceal his
possession of the illicit materials and thereby demonstrated his consciousness of guilt. State v.
Barton, 998 S.W.2d 19, 28 (Mo. banc 1999) (a defendant’s declaration that shows a desire to
conceal the offense tends to establish the defendant’s guilt of the charged crime); State v. Isa,
850 S.W.2d 876, 894 (Mo. banc 1993) (“A permissible inference of guilt may be drawn from the
acts or conduct of a defendant, subsequent to an offense, if they tend to show a consciousness of
guilt and a desire to conceal the offense or a role therein.”).
In sum, given the totality of the surrounding facts and circumstances, there was sufficient
evidence for the jury to reasonably find that Defendant was in actual possession of a controlled
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substance (methamphetamine) and paraphernalia (the modified light bulb), and the trial court did
not err in denying Defendant’s motion for judgment of acquittal. 2 Defendant’s points are denied.
Decision
The trial court’s judgment is affirmed.
GARY W. LYNCH, J. – OPINION AUTHOR
JEFFREY W. BATES, C.J./P.J. – CONCURS
MARY W. SHEFFIELD, J. – CONCURS
2
The cases cited by Defendant to support his argument to the contrary are inapposite. Neither the defendant in State
v. Clark, 490 S.W.3d 704, 709 (Mo. banc 2016), nor the defendant in State v. Driskell, 167 S.W.3d 267, 269
(Mo.App. 2005), acted in a manner that could support an inference they had the requisite knowledge of the presence
and nature of the controlled substances, which were discovered in sealed containers within spaces that neither
defendant had exclusive control over.
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